Kenyan Law Leaves No Child Behind in Inheritance

BY AMOS MUOKI

Across the country , another family faces a different dispute. John and Mary adopted a baby girl in 2005 under a lawful adoption order. They raised her, paid her school fees and loved her as their own. When John died without a will in 2024, his relatives argued that she could not inherit because she was "not really John's child."

Both cases turn on one question: in Kenyan succession law, who counts as a child? The answer is more inclusive than many Kenyans realise. The Law of Succession Act, read together with the Children Act, the Legitimacy Act and the Constitution, protects children regardless of how they came into the family.

Once a court makes an adoption order, the child is treated in law as the child of the adopter. The legal ties to the birth parents end, and new ties are formed with the adoptive family. Under the Children Act, the parental rights and duties over the child's custody, maintenance and education pass to the adopter, and the child is treated as one born to the adopter within marriage. The Act also entitles an adopted child to a share of the adopter's estate as if the child were the adopter's natural child.

In practice, this means an adopted child inherits exactly as a biological child would. The child counts in the distribution of an intestate estate and may benefit under a will. The same ties that bring new rights also end old ones: because the adoption order severs the link with the birth parents, the child generally cannot claim against a birth parent's estate.In In re EL aka RB , the High Court confirmed that an adoption order gives a child every right a biological child enjoys, including the right to inherit. The court noted that the applicant understood and accepted those consequences.

For families like John and Mary's, the lesson is plain. Relatives cannot shut out an adopted child by calling her an outsider. The law says otherwise.

A child born to parents who are not married to each other is, in law, a child born out of wedlock. If the parents later marry each other, the child is "legitimated" and is treated as though born within the marriage from the start.

The Legitimacy Act allows a legitimated person, together with their spouse, children and remoter issue, to take an interest in an intestate estate as if the person had been born legitimate. The Act also governs how the property of a legitimated person who dies without a will passes on. The practical effect is that such a child can inherit from the father, from the father's relatives and from the mother, on the same footing as any other child.

The rule matters in a country where many couples live together and start families before formalising their union. The timing of a wedding, the law says, should not permanently disadvantage the children.

Under customary law and, traditionally, Islamic law, a child whose parents never married often had no claim on the father's estate. The Law of Succession Act changed that. Section 3(2) widens the meaning of "child" for succession purposes. A child born out of wedlock is the child of their mother for all purposes. As far as a father is concerned, the term covers a child he has expressly recognised, in fact accepted as his own, or for whom he has voluntarily assumed permanent responsibility.

The test looks at the father's conduct, not paperwork. He need not have married the mother, and his name need not appear on the birth certificate. What matters is whether he recognised the child, accepted the child or took on responsibility for the child.

The courts have read the provision generously. In Re Estate of Reuben Nzioka Mutua (deceased), a woman's purported customary-law marriage failed because the man had earlier contracted a statutory marriage, so she was not his wife. Her children, however, had been recognised by the deceased and qualified as his children under section 3(2).

In Re Estate of Jonathan Mutua Misi (deceased), Mwera J held that the child of an adulterous union may inherit from the father, reasoning that such a child is the father's offspring and cannot be required to prove the mother's marriage. The Court of Appeal reached the same position in John Ndung'u Mubea v Milka Nyambura Mubea matters.

The most significant recent development came from the Supreme Court in Fatuma Athman Abud Faraj v Ruth Faith Mwawasi & Others (2025). The case concerned a Muslim man who had children by several women. Some were born within Islamic marriages and others were not, and the question was whether the latter could inherit, given that Islamic law traditionally excludes them.

The Court held that letting children born within marriage inherit while denying the same to others is unjustifiable discrimination, contrary to Articles 27 and 53 of the Constitution. It read Article 24(4), which allows Islamic law to apply to personal status, as subject to proportionality. Any departure from the guarantee of equality, the Court said, must be narrowly tailored, reasonable, justifiable and necessary, and Article 24(4) is not a blanket exemption. Punishing children for the supposed "sins" of their parents was neither reasonable nor justifiable.

The decision means that even under Islamic succession, children born out of wedlock cannot be excluded automatically. Their claims must be weighed against the constitutional promise of equality and the best interests of the child.

How does a child prove who their parent was? The starting point is section 118 of the Evidence Act. It provides that birth during a valid marriage between the mother and a man, or within 280 days after the marriage ended while the mother remained unmarried, is conclusive proof that the child is that man's legitimate child. The only exception is where it is shown that the spouses had no access to each other at any time when the child could have been conceived.

Courts guard the presumption closely. In Njenga v Njenga [1985], Madan JA, drawing on English authority, said that if the husband had intercourse with the wife, the presumption is not displaced by showing that other men did too. The law does not weigh up who is the likelier father. The evidence needed to rebut it must be strong, distinct, satisfactory and conclusive, because the consequences for the child and the mother last a lifetime.

The presumption does not apply to a child born outside marriage. Such a child can establish paternity by showing that the father recognised or accepted them under section 3(2), by producing documents or witnesses, or by DNA testing. Courts have grown more willing to order tests. In Re Estate of JWK (Deceased) (2026), the High Court upheld an order for DNA testing where a woman said she was the deceased's biological daughter and had been left out of the grant. The court held that the pursuit of truth justified the order.

What this means for Grace

Grace's position depends on a fact her story leaves open: was her mother married to the teacher when Grace was born? If she was, section 118 presumes Grace is the teacher's child, and Grace would first have to overcome that presumption by proving non-access. If her mother was unmarried, Grace may prove Peter's paternity through his recognition or acceptance, through documents and witnesses, or through DNA evidence. 

In either case she should seek legal advice early, because a deathbed statement alone is unlikely to carry a claim.

Lawyers say there are practical steps every family can take. Adoptive parents should make sure the adoption is formalised by a court order. An informal arrangement, however loving, does not give a child the automatic status of an adopted child, although the child may still have other routes to a claim, such as being a dependant of the deceased. Parents who marry after having children should update the children's records and keep the marriage and birth certificates together.

Unmarried fathers who want their children to inherit should recognise them, accept them as their own or take on permanent responsibility for them, and keep evidence of having done so. Making a will removes any doubt.

Children who believe they have a claim should gather everything that shows the relationship, from birth certificates and photographs to messages, proof of school fees and witness statements, and be ready for a DNA test if paternity is disputed. 

Relatives who try to exclude adopted, legitimated or out-of-wedlock children, meanwhile, increasingly risk losing in court.

Kenya's succession law has travelled a long way from the days when adopted children and children born out of wedlock were shut out of the family estate. Family, the courts now say, is not defined only by blood or by a marriage certificate, and children should not pay for the choices of their parents.

For John and Mary's daughter, the law is clear: she is John's child for every purpose, including inheritance. For Grace, the door is open, but she will need evidence. In Kenyan succession law, all children count.

The Writer is committed to educating Kenyans on their legal rights and responsibilities. This article is for educational purposes only and does not constitute legal advice. Readers with specific concerns should consult a qualified advocate.